Access easement and my rights

[Severay]

We have an easement to access our property recorded in Land Registry. It says that we can ‘pass at all times with or without vehicles over the driveway which is identified on the plan’. We started building work and unfortunately our land in front of the house is not big enough to accommodate materials, equipment and all builder’s vehicles. We have never parked on the easement land and are not planing to do so but unfortunately the builders do not have a choice and have to park there during working times. The owner already sent us a letter threatening with injunction not to allow various tradesmen to temporarily use her drive to carry out their legitimate work. The access to her and to other properties has never been obstructed or blocked. Where do I stand legally? Is injunction likely to be successful?

[des8]

Quite likely the injunction will be granted, and at your cost!

Have you tried negotiating a price with your neighbour to temporarily use her land as a parking space for the builders?
Start off with an apology, face to face if possible as it is her land and you only have a right of access over it.

[Severay]

She has known about the building work for the last two years. We involved her in the planning process and even changed the design to accommodate her. She built three houses herself so knows exactly what is involved. We always helped her with some work outside and we always contributed to the upkeep of her drive. What do I have to apologise for? Are you saying that I cannot have tradesmen accessing the property? Is it reasonable to expect scaffolders, for example, to carry their equipment from the main road, which is about 100 m away because my land is too small to temporarily park their vehicle? In that case I will not be able to accommodate any tradesmen doing work on the building.

[des8]

Your right is "to pass over" .the land.
You might be able to argue that you should be able to stop whilst unloading (but even that might be questionable).

I only suggested a possible way forward for you which did not involve court.
On the basis of your previous assistance I would still say a visit in person, but perhaps asking why she is not reciprocating.
However at the end of the day it is her land and if she doesn't want persons parking on it, so be it.
You will need to negotiate permission to park there, as I don't suppose the Access too Neighbouring Land Act 1992 will be of assistance unless you can show the works are necessary to preserving your property

[Ukmicky]

As Des8 has said ,no parking or storage of materials. Stopping to unload has been deemed a right where it is necessary for the enjoyment of the property where there was no physical area on the dominant land to drive onto. That doesn’t mean you can fill available parking areas with building material or other items and claim there is not any space to park or take large lorries onto the Servient land, Whether building work is also necessary for the enjoyment of your property is not something I can answer. The normal process is to negotiate a fee for the use of the land and to sign an agreement saying you will rectify any damage waiting x amount of time should some occur.

[Severay]

We do not store any materials on her land and we do not park on her land, only builders where there is no space left on our land as a necessity. We already told her we will repair the drive when all the work is finished. I do not see how we can do the work without using her land. If she gets an injunction I cannot see how we can finish the work on the building. What about visitors parking on the easement? What about livelihood of the builders and tradesmen? Is it as simple as her land and she can forbid anybody stopping on her land for a short duration? Can anybody answer if the necessity to temporarily use easement land for for trade vehicles to carry out property work falls under the category of the enjoyment of the property?

[des8]

We do not store any materials on her land and we do not park on her land, only builders where there is no space left on our land as a necessity So there is parking on her land. We already told her we will repair the drive when all the work is finished. I do not see how we can do the work without using her land. If she gets an injunction I cannot see how we can finish the work on the building. That is why you need to negotiate with her! What about visitors parking on the easement? They have no right and are trespassing What about livelihood of the builders and tradesmen? Not her problem.. she is not a charity Is it as simple as her land and she can forbid anybody stopping on her land for a short duration? Yes Can anybody answer if the necessity to temporarily use easement land for for trade vehicles to carry out property work falls under the category of the enjoyment of the property? I doubt there is any mileage in that argument. It is not that she is interfering with the enjoyment of your property

comments in red

[IdefixUK]

Can anybody answer if the necessity to temporarily use easement land for for trade vehicles to carry out property work falls under the category of the enjoyment of the property?

I think the only person able to answer that question is a Judge in a civil court room, I also think that you will not like the answer when the decision is made or the amount of money you will be required to pay in costs. Far better that you try negotiating with the neighbour for temporary permission to use her land.

Regards

[Severay]

I’m afraid the person does not respond to any reasoning and the temporary nature of the necessity to use the land, so it is not going to work. She complained on the day day 2 of the building works and a single white van left on her land for about 5 hours so that the builders can use it to access their tools…

[Severay]

What about the situation as follows: ‘The case produced (in the judge’s words) a 'snowstorm of incidents and issues' relating to the right of the owners of one of the houses to park on land adjacent to the properties and in spaces in the lane serving them. The Court concluded that for the right to park to be implied by a right of vehicular access, the ability to park must be ‘reasonably necessary’ for the exercise or enjoyment of the land being accessed’

in addition ‘In her conclusion, LJ Arden commented that, “There is a common misunderstanding that an Englishman’s home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours… While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other… Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.”

[des8]

From that quote you have missed out the important part viz "In other words, there is no automatic right to park if there is a right of vehicular access to a piece of land"
if you intend to quote case law you should give the full quote at least, and if you go to court you will need to reference it properly with name, year, court and case number ( Waterman & Anor v Boyle & Anor [2009] EWCA Civ 115 (27 February 2009)

A right to pass and repass is such that ancillary rights that are necessary to allow the right to be exercised or enjoyed are also included.
In practice this means stopping to load or unload and the like, but not to park for 5 hours at a time.

If you have vehicular access to the rear of your property, presumably you have parking space on your property?

[Severay]

I know there is no automatic right to park just because we have been granted access. My point is that for me to be able to enjoy my property it is reasonably necessary to have tradesmen able to tend to it and temporarily leave their cars on her drive. I do not have any other access, from the back or otherwise, to my property. Additionally if she wants to peruse injunction, whom is this against, me, although I never park on her drive, or the tradesmen who do not have a choice but to use her drive.

[des8]

Will depend on how one defines "temporarily"
If your building work is preservation you might have a right to access the ground under the Access to Neighbouring Land Act.
Does enjoyment of your land include new building works?

The claimant will probably apply for the injunction against you as owner of the dominant land, and it is with your permission the traders are using the right of way.

Whatever the rights of this case, it looks as if it is going to get expensive.
Advice is that you do your utmost to sweet talk the owner of the servient property, and if necessary pay her for the use of the land, or have the builders unload their vehicles of necessary tools and park elsewhere.

[Severay]

Des8, how will you interpret the case Moncrieff v Jamieson [2007] UKHL 42 where the court of appeal had ruled ‘that where one had a right of vehicular access from a public road, this also meant that they had a right to park on the servient tenement, although that right was limited to parking vehicles which were reasonably incidental to having access to the dominant tenement…The court held that the right to park could be ancillary to the easement otherwise provided where it was necessary for the enjoyment of the land which benefits from the easement, especially where this could have been in the contemplation of the parties at the time of the making of the easement (for which a deciding court must consider the full context and details of the case).’

[des8]

With Moncrieff v Jamieson it is important to see the background for that ruling.
The court took into account what had been contemplated when the easement was granted (paras 31 - 36 of judgment).

The premises benefiting from the easement in the Scottish case, had nowhere to park except on the servient land.
From the details you have given I assume (perhaps incorrectly) that your easement allows access to your property which includes land on which you used to park.
You have taken a decision to carry out certain building works which prevents parking on your land.
I doubt that a court will consider that when the easement was granted those building works were contemplated

If this matter ends up being decided by a court, that might be a deciding factor.